Meadows & Meadows (No 2)

[2018] FamCA 747

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS (NO 2) [2018] FamCA 747

FAMILY LAW – CHILDREN – application to vary current interim orders – where those orders are subject to an appeal application to be heard the next day – where it is not in the interests of justice or proper to determine the application to vary the orders until the determination of the appeal.

FAMILY LAW – PROPERTY – where the wife seeks disclosure and an order restraining the husband from liquidating and/or winding up the company - where the husband as sole director and shareholder has deregistered the company – no injunctive orders made – orders made for disclosure.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Meadows

RESPONDENT: Mr Meadows

INDEPENDENT CHILDREN’S LAWYER: Ms Weate

FILE NUMBER: PAC 3509 of 2013

DATE DELIVERED: 16 August 2018

PLACE DELIVERED: Meadows

PLACE HEARD: Sydney

JUDGMENT OF: Baumann J

HEARING DATE: 16 August 2018

REPRESENTATION

THE APPLICANT APPEARED IN PERSON

THE RESPONDENT APPEARED IN PERSON

INDEPENDENT CHILDREN’S LAWYER: Ms J Weate

THE COURT NOTING:

A.That the mother’s Appeal (EAA113/2017) against the Orders of the Court dated 11 October 2017 is listed before the Full Court tomorrow, 17 August 2018; and

B.That no Appeal has been filed against the Orders of the Court dated 14 November 2017 where inter alia the Court ordered on an interim basis that any orders providing for the child, B born … 2011 (“the child”) to spend time with the mother are suspended and further that the child spend time with the mother supervised at a contact centre at V Town, together with telephone time.

THE COURT ORDERS UNTIL FURTHER ORDER:

Parenting

1. That in the event the Full Court remits for re-hearing the Applications dealt with by the Court on 11 October 2017, then if possible such re-hearing be listed before the Honourable Justice Baumann as soon thereafter as is possible.

2. That all outstanding parenting, property and other relief applications be set down for Final Hearing for not more than five (5) days commencing at 10.00am on 14 January 2019 in the Family Court of Australia at Sydney before the Honourable Justice Baumann.

3. That the mother’s application to vary the parenting orders dated 14 November 2017 be adjourned to a date to be fixed before the Honourable Justice Baumann after the decision of the Full Court is released.

4. That pursuant to s.121 of Family Law Act 1975 leave is granted for a copy of the family report prepared by Family Consultant Ms Z dated 3 April 2018 to be provided to:

   (a)       the maternal grandparents, Mr and Ms BB; and

   (b)       the father’s partner, Ms F,

   and to no other person.

   That the family report writer, Ms Z have leave to read, as background material, the family report prepared by Dr C dated 8 December 2016 and the Registry of the Court is directed to make a request to the Registrar of the Federal Circuit Court of Australia Sydney Registry for a release of Dr C’s family report for that purpose.

Property

1. That noting the Single Expert, in compliance with the Orders dated 15 January 2018 conducted an updated valuation of the Suburb P property and the trial of these proceedings is now to be conducted in January 2019, the husband, at his cost, shall cause the Single Expert to further update the valuation effective as at 31 October 2018.

2. That the husband shall cause the Single Expert’s updated valuation report to be, immediately upon receipt, filed with the Court and provided to the wife.

3. That the wife be entitled to copies of all statutory accounts for the company L Pty Ltd (“the company”) for the years 2015, 2016, 2017 and 2018, including the final returns and copies of all minutes of the company supporting requests made by the husband as sole director and shareholder to deregister the company and to support this Order, the husband is directed to provide to the company Accountant, Mr W written authorisation to provide such documents, at the husband’s cost.

4. That the husband provide to the wife within twenty one (21) days of the date of these Orders a list of all machinery or other equipment in his possession, power or control which relates to the previous operation of the company and a list of all property, including dates of disposal and funds received, from such disposal of assets by the company since 1 July 2015.

5. That the husband do all such things and sign all such documents necessary to cause the sum of $25,000 to be redrawn from the mortgage facility associated with the Suburb P property, with $15,000 to be paid to the wife and $10,000 to be paid to the husband, and with the characterisation of such payments to be determined by the trial Judge.

6. That unless otherwise listed for the purposes identified in this Order, trial directions shall issue from the chambers of the Honourable Justice Baumann on or before 30 September 2018, and in that respect, trial directions by Orders 6, 7 and 8 made on 15 January 2018 are vacated.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadows & Meadows (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MEADOWS

FILE NUMBER: PAC 3509 of 2013

Ms Meadows

Applicant

And

Mr Meadows

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. I propose to deal with the parenting application in this way today.  Sadly, this is a case that has been in litigation for some time.  It involves a little girl called B, who is now approaching her seventh birthday.  The parents of the child separated in 2012.  Without dealing with all of the history, after proceedings were commenced on 4 October 2016, Judge Kemp in the Federal Circuit Court of Australia made some orders by consent that preserved the child, B, living with the mother and spending alternate weekend time with the father.  A family report was prepared and produced by Dr C.  Ultimately, the matter came before Judge Kemp for Interim Hearing.  He delivered reasons and made orders on 10 January 2017, now some 18 months ago, providing that the child would live with the father.

2. That was, of course, a very significant order and one which did change, significantly, earlier parenting arrangements.  The mother was to have alternate weekend time with her daughter, with one of her parents, as I recall the order, being present.  The child commenced school in January 2017 at X School, which is close to where the child currently lives.  In July 2017, his Honour Judge Kemp transferred the matter to the Family Court of Australia.  In terms of this history, I acknowledge that there are also property issues and spouse maintenance issues which have yet to be determined as well.

3. In or about August 2017, the father began cohabitation with his current partner, Ms F.  Ms F has a daughter, G, who is of a similar age to the child.  They now reside together.  The next major event, in terms of the Court history, is that on 11 October 2017 Le Poer Trench J was dealing with an Application in a Case by the mother filed in September 2017, in which the mother sought to vary the orders of Judge Kemp.  Le Poer Trench J dismissed the mother’s Application in a Case.

4. Again, it is absolutely apparent and understandable that the mother has been distressed by the fact that her child, B, is no longer in her primary care.  The mother, as she was perfectly entitled to do, appealed the orders of Le Poer Trench J, and as the transcript today reflects, that appeal is before the Full Court tomorrow, 17 August 2018.  The mother, as one would expect, is hopeful that the Full Court will grant her the relief she seeks, on the basis of what she asserts are errors by Le Poer Trench J, and seeks not only that the matter be reheard but that other orders be made.

5. It is not proper for me today to require the mother to ventilate matters before me that she is going to ventilate before the Full Court tomorrow.  In some ways, the timing of this application being listed before me today is regrettable, and it might have been of more utility if it was before me after the Full Court decision, but nonetheless that is how it has been listed.

6. Sadly, there was an event on or about 5 November 2017 in which it is asserted that the mother effectively withheld the child.  Now, that is a matter which is no doubt of great importance in this matter, and one which I cannot make findings on in the truncated nature of interim hearing proceedings, but there was a very significant consequence, it seems, as a result of that event.  On 10 November 2017, the father filed an Application of Case in which he sought an order requiring the child, the child, to be returned to his care.  That matter was dealt with urgently by Loughnan J who made such an order and, on an interim basis and, it appears, ex parte, suspended the mother’s time, again a very significant order and one which no doubt caused the mother great distress.

7. To the credit of the Court, the matter was brought back before the Court on 14 November 2017, again before Le Poer Trench J.  I think he may have dealt with it the day before, but quickly, and in a reserved decision which I have read, his Honour made interim orders suspending the time, effectively confirming the order Loughnan J made some days earlier, and, importantly, in his orders prescribed that the time, essentially, the child would spend with the mother would be supervised at the V Town contact centre.  Orders for telephone time three times a week were also made.  The mother today, and I think in her material, has consistently asserted that the telephone time has been interrupted by the father’s behaviour unfairly.

8. It is apparent, however, that the mother, for the reasons that she expressed to the Court through the report writer, Ms Z, and again today, has chosen not to exercise her right to spend time with the child at the contact centre since the order was made in November 2017.  Her reasons for that position, which are, according to the family report, understood by her parents and which are clearly articulated and confirmed today, has had the result of the mother not having physical time with the child, now, for probably around nine months.  Again, I accept that this is a matter of great distress to the mother and possibly to the child.

9. On 25 January 2018, family consultant and report writer Ms Z conducted further interviews with the family.  I have read the report.  The report, of course, is just part of the evidence.  The Court is not bound by it, but on an interim basis must give it weight.  There are many aspects of Ms Z’s report which I anticipate the mother would seek to challenge at a trial, including by cross examination in the usual way, and of course, she will have every opportunity to do so.

10. However, Ms Z, in her report released 3 April 2018, identified that, in the case at that stage, on the evidence available to her, and that evidence included a conversation with the mother’s chosen personal psychologist, Ms Y (see paragraphs 59 to 61), that the time that the child should spend with the mother at this stage should be supervised.  Ms Z opined that that should occur for about six months, and then the issue revisited.

11. Sadly, because of what I have already indicated, that supervised time has not commenced, and so there is no current data before the Court of any observations between the mother and the child since the significant change that occurred with the suspension of time in late 2017.  That lack of data is troubling, but it is not something that the Court can do more than it has done, in my view, and that is make an order for time.  I would implore the mother to consider at least beginning supervised time immediately, so that there is some additional data available to the Court of what Ms Z herself observed during the interviews, namely the warm relationship between the mother and the child.  However, that is ultimately a matter for the mother.

12. The matter was listed for hearing in the Registry here in Sydney in June 2018.  The mother brought an application, similar to the application today, to vary the terms of the supervised order and very the terms of the order of Judge Kemp made in January 2017, in effect, seeking, as she does, that the child live with her.  Her Honour Justice Stevenson, for reasons delivered on 21 May 2018, dismissed the mother’s application to vary the parenting orders.  It is apparent to me that the main reason her Honour did so was because it was her belief, reasonably held, that there would be a trial within a month.  It did not occur.

13. Some time after the June trial was vacated, the Court informed the parties that a new trial date in September 2018 would occur.  The father says, and I understand this is correct, that on or about 30 July 2018 the parties were informed that that trial date had also been vacated.  I do not propose to try and justify what is, I think, regrettable failure of the Court to be able to offer these parties a trial on these important matters.  I became aware of this case last night, having earlier indicated that I would try, having seen the material, see if I could accommodate a trial as soon as possible.  I have listed the matter for trial for the week commencing 14 January 2019, which is the earliest date that I can accommodate it.  My understanding is there is no other Judge available to hear the case earlier than that.

14. In all the circumstances of this matter, it is my view that it would not be in the interests of justice or proper to determine the mother’s current interim application to vary the orders until the determination of her appeal before the Full Court tomorrow.  Determination means the hearing and publishing of reasons.  I appreciate that the mother queries what is to occur if the Full Court dismissed her application, but just as much, I cannot make any comment about the likelihood of the mother’s appeal being successful, if the mother is successful, it may well be some directions from the Full Court as to the future management of the case.

15. Accordingly, and for those reasons, I propose, having listed the matter for final hearing, to also order that, in the event that the Full Court remits for rehearing the appeal dealt with by the Court on 11 October for rehearing that, if possible, such rehearing be listed before me thereafter.

16. It seems that there is at least agreement that the parents of the mother can see the family report of Ms Z. The father seeks an order not opposing that request by the mother, but seeks an order that his partner be similarly entitled to view the report. The mother opposes that. Section 121 of the Family Law Act1975 (“the Act”) restricts the publication of the material provided through the Court process to persons other than the parties.  The Court is even in a position to restrict the way that parties can disseminate information, such that the Court has on occasion been required to injunct parties from publishing documents on Facebook and other social media and otherwise distributing it.

17. Family reports are an important part of the Court process in parenting cases. However, the evidence in the family report is, as in this case, untested. There are opinions expressed by Ms Z which may not be accepted by the Court. There are statements made in the nature of family report interviews that are expressed with the report writer, probably anticipating that they will be, if in the report, confidential in nature. As Ms Weate quite correctly identified, absent an order under section 121 of the Act or some other leave application, documents in the Court process are not to be distributed to other persons.

18. The mother seeks that her parents, who, as I understand it, live in the same home, although separately as her, are supportive of her, and, reflected from the evidence of Ms AA, which I have read, have even spoken to the mother’s psychologist to see how they can further support her.  They are clearly interested in the welfare of their daughter and their granddaughter.

19. The father does not oppose them obtaining a copy of the report.  The father, in what might be seen by the mother as a tit-for-tat response, asks that his partner, who he says will be his wife from November; will be his wife at the trial; who is the mother of their child (of the age of some six months) should also be entitled to view the report.

20. The mother says she would regard the partner of the father having access to the report, noting of course that she was interviewed for the report, as an act of “intimidation or violence” upon her.

    I do not discount that the mother may feel that way.  However, as a matter of fairness and, I believe, properness in this case, and understanding the ongoing role the mother’s parents and the father’s partner will have, to some degree, in the parenting of the child, I propose ordering that Ms Z’s family report dated 3 April 2018 may be produced to the parents of the mother, Mr and Ms BB and the father’s partner, Ms F and to no other person.

Property

1. During the course of discussion as to what constitutes the pool of assets, and having identified that the former matrimonial home will need to be revalued, and that there is a mortgage on that property that has a drawdown capacity limited to $25,000 (with such mortgage at $215,000 currently in debt, attracting interest at 5.5per cent), I invited the unrepresented parties to tell me about other assets.  I was alerted to the existence, at one time, of a company, by the name of L Pty Ltd.

2. It is apparent, in the long history of this matter, that the business of the husband that he operates, from which he generates income, has been a matter of some contest. The matter should have been on for trial, as I have already indicated, in June, or now September 2018. There appears to be, in the long history of this matter, no injunction that has been granted by either the Federal Circuit Court or the Family Court injuncting, under section 114 of the Act, the way in which the husband has, post separation, which I note was in 2012, managed or operates the business.

3. I have asked the wife, who clearly is concerned about what she believes is either wastage of funds or dispersal of assets of an entity under the control of the husband for his own purposes, if there was any injunction.  She indicates, there has been no injunction, but she seeks one today.

4. The wife says, at paragraph 6 of the orders sought, that she seeks the following injunction, in these terms:

   …preventing [Mr Meadows] from closing any accounts or liquidating/winding up of the company [L Proprietary Limited]”

   and for the disclosure of all documents in relation to his application to deregister the company, including any sales or transfer records of any assets of the company, and for the location and recovery of any assets disposed of by the husband in regards to or in the name of the company L Pty Ltd.

5. It is apparent from the terms of the order sought that the application involves both an issue of injunctive relief against the sole director and shareholder of L Pty Ltd and a request for further disclosure under the Rules.  I deal first with the application for an injunction.

6. I am not satisfied that, whilst there may have been earlier applications, that any injunctive order against the husband has been made. Accordingly, in the absence of any injunction, he is entitled to take whatever steps are appropriate, within the requirements of Corporations law, in the management of the company of which he was the sole director and shareholder.

1. He says, in his material, and I infer, probably on the advice of his accountant, Mr W, of CC Accountants, that he has taken steps to deregister the company.  Deregistration of a company is a voluntary action by those who control the company.  It is not the same as liquidation or winding up.  Before a company can be deregistered, it must not have any assets, liabilities, or any tax liabilities.

2. The wife, who represents herself, has made enquiries, and tells the Court, and I accept, that the deregistration process has been commenced but has not yet been completed. There are steps that a person who claims to have an interest in the deregistration process, under the Corporations law, can take. In my view, there is no evidence before the Court that persuades me that the injunctive relief sought by the wife is anything other than futile in this process.

3. The process of deregistration, whilst it should be fully explained to the wife, is a way in which companies that are no longer trading, as the husband says L Pty Ltd is no longer trading, cease having the obligations to continue to report, and pay annual fees, and the like to the Australian Securities and Investment Corporation.

4. Accordingly, for the reasons given, I am not satisfied, in the exercise of discretion, that I should order the injunction which forms part of proposed order 6.

5. It is my view, however, that, to the extent that there are documents which relate to the operation of the company and the deregistration that the wife does not currently have, she should have them produced or accessible.  In that respect, she has drawn my attention to the documents annexed to an Affidavit filed in the Federal Circuit Court on 22 February 2007, in particular at Annexure F.  At Annexure F and thereafter is correspondence dating back some time (at least as early as February 2015) from an accountant retained by, it seems, her father, to whom the letter is addressed, who had the benefit of looking at some documents, set out in the letter of 18 February, of the company, at least in 2010 and 2014.

6. I acknowledge that, through the enquiry, in a letter dated 31 May 2015, again addressed to the wife’s father, but nonetheless before the Court, there were queries raised.  Arising from the investigation at that time, a Mr DD opined that the average revenue invoiced over the five year period to 30 June 2015 was $189,005.78.  He then goes on to acknowledge that, in assessing the value of the business on what seems to be a net maintainable earnings basis, and allowing for variations including an appropriate wage for the operator, he opined that this would therefore “equate to a conservative valuation of the business of approximately $50,000”.

7. As I have sought to explain to the wife today, of course, the first step for the Court in any property division is to first assess the value of the assets, liabilities, financial interests and superannuation interests as at the date of the trial.  The evidence of the husband is that L Pty Ltd, of which he was the sole director, shareholder and operator, is no longer operating.  He swears as much in his Affidavit.  He can be cross examined about that at trial.  It seems to me that the only possible useful discovery that I would be prepared to order, taking up the second part of proposed order 6, could be met by the husband being required to sign an authority to his accountant that the wife be entitled to copies of all statutory accounts for the company L Pty Ltd for the years 2015, 2016, 2017 and 2018, including the final return and copies of all minutes of the company supporting the request made by the husband as sole director and shareholder to deregister the company under the Corporations Act.

8. I will direct that the husband shall provide to the wife within 21 days a list of all machinery, all equipment in his possession, power, control, which relates to the previous operation of the company L Pty Ltd and a list of all assets, including dates of disposal and funds received from such disposal of assets, in L Pty Ltd, since 1 July 2015.

9. Now, for those reasons, I am not making any other orders in respect of the company, and I am not ordering an auditor, as sought by the wife.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 16 August 2018.

Associate: 

Date:  21 September 2018